Policy Letter

Amicus Brief: Challenging the Constitutionality of Oklahoma’s Death Penalty Statute

On January 3, the Oklahoma Death Penalty Review Commission—a blue-ribbon panel of Oklahomans from the right and the left, including a former governor and a former speaker of the Oklahoma House of Representatives—filed an amicus brief in the United States Supreme Court in Pavatt v. Sharp. The commission asks the court to hear the case of Oklahoma death row inmate James Pavatt, challenging the constitutionality of the state’s death penalty statute.

In 2017, as part of an initiative of The Constitution Project, the commission issued an extensive report on problems with Oklahoma’s administration of the death penalty. The commission’s brief addresses an important area discussed in the report concerning how the state’s highest criminal appellate court, the Oklahoma Court of Criminal Appeals, has interpreted the state’s death penalty statute so broadly as to encompass almost any murder committed in the state. This violates the Constitution.

At issue in Pavatt v. Sharp is the application of one of the state’s “aggravating factors.” In order for a case to be eligible for the death penalty, the prosecution must prove certain details of the case, known as aggravating factors, or “aggravators,” as outlined in the law. The aggravator in question here applies to murders that are “heinous, atrocious, or cruel.” Rather than limiting application of this aggravator to cases involving “torture or serious physical abuse,” the Oklahoma Court of Criminal Appeals has strayed far beyond the original, narrow construction of the aggravator and has instead allowed death sentences to be imposed in nearly any case in which a victim did not die instantaneously. In so doing, the commission’s brief asserts, the court has “opened the door to arbitrariness by basing capital punishment determinations on chance events.” Allowing the death penalty to be applied in this manner leads to capricious and arbitrary application of the punishment, violating the Eighth Amendment’s prohibition on cruel and unusual punishment.

The commission’s brief also addresses a grave procedural concern in the case. A panel of judges of the U.S. Court of Appeals for the 10th Circuit held that application of the aggravating circumstance to Pavatt’s case violated the Eighth Amendment. But then all judges on the 10th Circuit took up the case and held that because Pavatt had not raised his constitutional challenge to the statute before a lower court earlier on in the case, he had waived his right to raise it now. The 10th Circuit did not vacate the panel’s opinion on the unconstitutionality of the statute, but held Pavatt had simply raised the claim too late and thus could be executed. The 10th Circuit’s actions are especially alarming given that the state of Oklahoma actually waived its objection to Pavatt’s failure to raise the claim earlier in the case. As the amicus brief asserts: “If [the Supreme] Court denies review in this case, it will send the disturbing message that the Court is willing to allow States to execute citizens based on laws that have been deemed cruel and unusual by the highest courts to consider them.”

This brief was assembled by pro bono counsel of Goldstein & Russell, P.C. and The Constitution Project at the Project On Government Oversight.